Opinion recap: No new Bivens remedy

Posted Tue, January 10th, 2012 5:02 pm by Lyle Denniston

Lengthening a pattern that runs back almost three decades, the Supreme Court over a single dissent refused on Tuesday to create a new right to sue for damages for wrongdoing based on a claim directly under the Constitution, rather than a federal or state law. It was the sixth time since 1983 that the Court had turned aside such a claim. That left the so-called “Bivens remedy” confined to the three specific situations in which it was made available between 1971 and 1980. (The claims get their name from the 1971 decision in Bivens v. Six Unknown Federal Narcotics Agents.)

The ruling appeared to have significance not only in this single case, from California, but also in the eight states where federal prison facilities are being run by private companies.

In the new case, the Court barred an inmate in a federal prison in California from suing private employees who had worked at that prison on the staff of a company operating the facility under contract with the federal government. Just as the Court in 2001 had barred inmates from filing a Bivens claim against the private company running a federal prison, the Court said Tuesday that this alternative is not available when the targets are a company’s workers instead of the company itself. In both situations, the rationale for the decision was that the inmates had the option of trying to get a remedy for their harms under state law.

The new ruling came in the case of Minneci, et al., v. Pollard, et al.(docket 10-1104). Written by Justice Stephen G. Breyer with only Justice Ruth Bader Ginsburg dissenting, the decision overturned a ruling by the Ninth Circuit Court allowing the inmate, Richard Lee Pollard, to sue private employees who, he contended, had caused him physical harm while he was an inmate at the federal prison in Taft, Calif.

At that time, the facility was being operated under contract with the federal Bureau of Prisons by Wackenhut Corp. That company is now known as The GEO Group.

In April 2001, Pollard accidentally tripped over a cart that he said had been left in the hallway outside a prison butcher shop where he was working. His lawsuit claimed that he broke both elbows, but the prison staff required him to make use of the arm in painful ways in taking him to and from an outside clinic for treatment, refused to provide a splint for the injured arm though a doctor had prescribed one, and ordered him back to work in the prison before his injury had fully healed. He also claimed that they denied him adequate meals and medical services. His claim was that he suffered “cruel and unusual punishment” in violation of his Eighth Amendment rights.

The Ninth Circuit had allowed the lawsuit to go forward, and five of the sued employees took the case on to the Supreme Court. The Ninth Circuit found that state law remedies that Pollard could have tried were inadequate.

Justice Breyer’s opinion briefly examined the state law options open to Pollard, and concluded that they were adequate, because they provided both significant deterrence against misconduct and the availability of compensation.

While the opinion appeared to make no new law on the standards for a Bivens remedy, Breyer did emphasize that such a remedy would not be recognized in any situation unless the individual or individuals involved lacked “any alternative remedy” or one that was “nonexistent.”

Justice Antonin Scalia, joined by Justice Clarence Thomas, questioned the legitimacy of any Bivens remedy, but said they would limit the right to the three situations previously found by the Court.

In dissent, Justice Ginsburg argued that inmates in federal prisons should be allowed to sue for damages for their injuries under the Eighth Amendment, so that there is a uniform remedy in all such facilities. She said deterrence of individual employees of a private firm running a prison was more important than taking action against the private employer.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.